Black v. Secretary of Health and Human Services
| Decision Date | 22 August 1996 |
| Docket Number | 95-5156 and 95-5162,Nos. 95-5137,s. 95-5137 |
| Citation | 93 F.3d 781 |
| Parties | Dennis Lee BLACK, Guardian Ad Litem of his minor child, Daniel Black, Petitioner-Appellant, and Verna May, Petitioner-Appellant, and Jose R. Rodriguez and Guadalupe Rosas Rodriguez, individually and as next friends of Natalie Rosas Rodriguez, a minor, Petitioners-Appellants, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Federal Circuit |
James D. Leach, Viken, Viken, Peachota, Leach & Dewell, Rapid City, South Dakota, argued, for petitioner-appellant Dennis Lee Black. Of counsel was Jeffrey L. Viken.
Thomas C. Knowles, Van Blois & Knowles, Oakland, California, argued, for petitioner-appellant Verna May.
Richard Gage, Gage & Moxley, Cheyenne, Wyoming, argued, for petitioners-appellants Jose R. Rodriguez and Guadalupe Rosas Rodriguez.
Robert D. Kamenshine, Attorney, Appellate Staff, Civil Division, Department of Justice, Washington, D.C., argued, for respondent-appellee. With him on the brief were Frank W. Hunger, Assistant Attorney General, and Barbara C. Biddle, Attorney.
Peter H. Meyers, George Washington Law School, Washington, D.C., argued, for amicus curiae.
Before PLAGER, SCHALL, and BRYSON, Circuit Judges.
These three consolidated appeals call on us to interpret a provision of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to 300aa-34. The Act provides that persons who suffer injuries related to the administration of certain vaccines may qualify for participation in the Act's compensation program. To receive compensation under the program, an injured party must first file a petition that satisfies several requirements, among which is the requirement that the petitioner submit documentation demonstrating that the injured person "incurred unreimbursable expenses ... in an amount greater than $1,000." 42 U.S.C. § 300aa-11(c)(1)(D)(i). The special masters in each of the three cases before us found that the petitioners failed to satisfy the $1000 requirement. The special masters therefore dismissed each of the petitions, and the Court of Federal Claims affirmed the dismissals.
In this court, the appellants have raised a variety of arguments challenging the dismissal orders. We reject the arguments directed to the construction of the statute, and we also reject the appellants' constitutional claims. We accept in part, however, the argument that under certain circumstances Vaccine Act petitioners may be able to satisfy the statutory $1000 requirement through a supplemental pleading filed after the initial petition. Accordingly, we affirm the judgments in two of the three cases (Black and Rodriguez) and remand the third case (May) to the Court of Federal Claims for further proceedings.
Daniel Black, a Native American child, received a diptheria-pertussis-tetanus (DPT) vaccination on December 14, 1984, at an Indian Health Service hospital. Shortly thereafter, he developed serious medical problems, the effects of which he has continued to experience since that time. On October 1, 1990, his father filed on his behalf a petition seeking compensation under the Vaccine Act. When a question arose as to whether Daniel Black had incurred at least $1000 in unreimbursable expenses attributable to the vaccine-related injury, his father filed an affidavit stating that prior to filing the petition he had spent $814.14 on a computer system that was used in part to aid in Daniel's rehabilitation. The affidavit added that between February 1992 and April 1994 Daniel's father spent an additional $3,719.75 on computer equipment that was used in part for Daniel's therapy. The record also reflected that Daniel had incurred medical expenses of $17,427.10, but that the expenses had been paid by the Indian Health Service. On the government's motion, the special master dismissed Black's petition on the ground that Daniel Black had not incurred unreimbursable expenses of more than $1000 prior to the date the petition was filed. The Court of Federal Claims affirmed the dismissal. Black v. Secretary of Dep't of Health & Human Servs., 33 Fed. Cl. 546 (1995).
Verna May, an adult, received a rubella vaccination on April 5, 1990, and thereafter developed an ailment in her joints. On April 3, 1991, more than two years before the expiration of the three-year Vaccine Act statute of limitations, she filed a petition for compensation under the Vaccine Act compensation program. She filed her Vaccine Act petition in order to toll California's one-year statute of limitations for tort actions. The government subsequently moved for dismissal on the ground that May had not incurred more than $1000 in unreimbursable expenses prior to filing her petition. She responded that, although she had incurred expenses of only $892.62 at the time her petition was filed, she incurred additional expenses within a month thereafter that brought her total expenses to more than $1000. The special master dismissed May's petition on the ground that she had not incurred more than $1000 in unreimbursable expenses attributable to her vaccine-related injury before she filed her petition, and that the expenses she incurred after the petition was filed could not be counted toward the $1000 threshold. The Court of Federal Claims affirmed. May v. Secretary of Dep't of Health & Human Servs., No. 91-1057V, 1995 WL 298554 (Ct.Fed.Cl. July 25, 1995).
Natalie Rosa Rodriguez, a child, received a DPT vaccination on October 3, 1984, after which she developed serious medical problems. On October 1, 1990, her parents filed on her behalf a petition for compensation under the Vaccine Act. Counsel for the Rodriguez family subsequently informed the special master that the family could not establish that it had incurred at least $1000 in unreimbursed expenses as a result of the vaccine-related injury. The special master therefore dismissed the petition, and the Court of Federal Claims affirmed. Rodriguez v. Secretary of Dep't of Health & Human Servs., 34 Fed. Cl. 57 (1995).
A person seeking compensation under the Vaccine Act must file a petition for compensation. A person may file such a petition if he or she "meets the requirements of subsection (c)(1)" of section 11 of the Act, 42 U.S.C. § 300aa-11(c)(1). One of those requirements is that the person with the vaccine-related injury suffered the effects of the injury for more than six months and "incurred unreimbursable expenses due in whole or in part" to the injury "in an amount greater than $1000." 42 U.S.C. § 300aa-11(c)(1)(D). In order for a petitioner to be eligible for compensation under section 15 of the Vaccine Act, 42 U.S.C. § 300aa-15, the petition must be filed within the statutory limitations period. In the case of vaccines administered before October 1, 1988, the limitations period is 28 months from that date; in the case of persons vaccinated after October 1, 1988, the limitations period is 36 months from the occurrence of the first symptom of the injury or 24 months from the date of death if death occurs as the result of the administration of the vaccine. 42 U.S.C. § 300aa-16. Section 12 of the Act, 42 U.S.C. § 300aa-12, grants the Court of Federal Claims jurisdiction to determine if a petitioner under section 11 is entitled to compensation, and section 13 of the Act, 42 U.S.C. § 300aa-13, provides that compensation shall be awarded if the petitioner can prove (1) the matters required in the petition by section 11(c)(1), and (2) that there is not a preponderance of the evidence that the injury or death described in the petition was due to factors unrelated to the administration of the vaccine in question.
The appellants are all somewhat differently situated with respect to the issue presented in this case. The Rodriguez appellants have not alleged that they have had to pay or become legally liable for more than $1000 of unreimbursable expenses due to their daughter's vaccine-related injury. Appellant Black has alleged that he has had to pay more than $1000 in unreimbursable expenses attributable to his son's vaccine-related injury, but the payments he relies on to exceed the $1000 statutory threshold were made after the expiration of the 28-month statute of limitations applicable to his case. Appellant May has alleged that she had to pay more than $1000 in unreimbursable expenses and that those payments were made within the three-year limitations period applicable to her case, although she had not made $1000 in unreimbursable payments by the time she filed her Vaccine Act petition. Because of the way we interpret the pertinent Vaccine Act provisions, the differences among the appellants' cases are significant in determining the eligibility of each of the appellants for compensation under the Act.
We first address the several issues of statutory construction that the appellants have raised in support of their claims. They have focused in particular on the phrase "incurred unreimbursable expenses ... in an amount greater than $1000," which they contend the trial courts construed too narrowly.
Citing the dictionary definition of the term "incur," i.e., "to become liable or subject to," Webster's Third New International Dictionary 1146 (1968), the appellants argue that the injured persons "incurred unreimbursable expenses" in excess of $1000 at the time of their injuries, inasmuch as their injuries were so severe that they faced the near-certain prospect of ultimately suffering unreimbursable expenses of more than $1000. In ordinary usage, however, to "incur" expenses means to pay or become liable for them; the term does not refer to any and all expenses that may ultimately be traceable to a particular event. Thus, a person who is released from a hospital after treatment for a broken leg would normally be said to have "incurred" the hospital expenses at that point, but not to have "incurred" the expenses that may flow from...
To continue reading
Request your trial
-
United States v. Bond
...a claim in the Bankruptcy Court and could not later cure the jurisdictional defect. See Black v. Secretary of Health & Human Servs., 93 F.3d 781, 790 (Fed. Cir. 1996) (distinguishing statutes that expressly bar filing suit before exhaustion with those that preclude judicial review, and noti......
-
Lamb v. Millennium Challenge Corp.
...§ 2675(a). This distinction was highlighted by Judge Bryson in his opinion for the Federal Circuit in Black v. Secretary of Health and Human Services , 93 F.3d 781 (Fed. Cir. 1996). In that case, a plaintiff sought compensation under the National Childhood Vaccine Injury Act of 1986 ("Vacci......
-
Northstar Fin. Advisors Inc. v. Schwab Invs.
...the defect which otherwise would have deprived the district court of jurisdiction under Rule 15(c).”); Black v. Sec'y of Health and Human Servs., 93 F.3d 781, 790 (Fed.Cir.1996) ( “Nonetheless, a defect in the plaintiff's case, even a jurisdiction defect, can be cured by a supplemental plea......
- Northstar Fin. Advisors Inc. v. Investments